Indian Government Asks Supreme Court to Reverse Anti-Gay Law

The Indian government has filed a petition to the Supreme Court arguing against its newly reinforced ban on homosexual acts, claiming that the move "violated the principle of equality."

India's Supreme Court ruled to uphold a colonial-era law that could punish homosexual acts with long-term imprisonment on December 11th, a decision that was criticized by many inside and outside of India.

India's government sent a review petition to the Supreme Court requesting that it review the legal decision, calling the choice "unsustainable," according to the Times of India.

The petition claims that the Supreme Court ruling “suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by this court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution," per Al Jazeera.

The court's decision earlier in the month overturned a 2009 Delhi High Court ruling that decriminalized gay sex, upholding instead a colonial-age law that deemed such acts an "unnatural offence," wrote the BBC.

Why can't they decriminalize it through the legislatures? After all it is a colonial law and assuming they have a British political system.
The UK decriminalized it by an act of parliament many years after the famous Wolfenden report. It seems that it didn't need the court's approval.

Posted by: simon | Dec 21, 2013 6:55:50 PM

@Jay: I wouldn't assume that the India Supreme Court is inept. One reason for a review petition might be that this issue is a political hot potato and the legislators don't want to lose the votes of homophobic constituents.

You really have to be up on India's constitution to comment on whether the court blew it or not. It is possible that they made the only decision they given the rules - they are not supposed to decide the constitutionality of laws based on whether or not they like a law.

It would be interesting to read an analysis of the decision by an expert on India's legal system.

Posted by: Bill | Dec 21, 2013 7:01:53 PM

They should stop using phrases like "the right to personal choice."
I know they're on the side of gay people, but we don't choose to be gay.

Posted by: woody | Dec 21, 2013 7:37:51 PM

Why can't the India legislature (or whatever it has) just dump the law and pass the law it wants? Or is their legislature as crippled as ours is??

Posted by: David Bailey | Dec 21, 2013 7:42:14 PM

@David Bailey: India has a coalition government. The various parties in the coalition have to work together, but if an issue is critical to one party in the coalition, the threat of losing that party and triggering a general election due to a no confidence vote can scare the others into not rocking the boat. You'd have to do detailed analysis of the current setup to determine if that is relevant in this case. There are a number of other possibilities as well.

One advantage a parliamentary system has is that, while it can be as disfunctional as ours, it is less likely to be disfunctional on all issues simultaneously.

Posted by: Bill | Dec 21, 2013 8:09:26 PM

So, in effect, "please do our job for us, and get rid of this law we shouldn't have".

Weak as water, as Mrs. Slocombe would say.

Posted by: Randy | Dec 21, 2013 10:23:14 PM

A review petition ????

Has the parliament heard of legislating to repeal the 1861 'Offences Against the Person Act' ??

Do your job legislators !

Posted by: JackFknTwist | Dec 21, 2013 10:38:14 PM

The Indian Supreme Court sullies the memory of Gandhi and Nehru who struggled mightily to get India out from under British domination.

Posted by: andrew | Dec 22, 2013 12:21:42 AM

@JackFknTwist : if you check the Times of India article and click on a couple of links, you'll find this article: http://articles.timesofindia.indiatimes.com/2013-12-19/india/45376893_1_review-petition-delhi-hc-ngo-naz-foundation

It appears that they are trying the petition first and will not try to get any legislation passed until the court responds. It is possible that the time it takes to get legislation passed is long enough that it is worth trying the petition and introducing legislation only if the petition fails.

Posted by: Bill | Dec 22, 2013 1:34:18 AM

As an Indian, I think this is the only sensible choice for us for a couple of reasons.

India goes into the general election in the next 4 months. To pass a new law it would take at least 6 months to get it through various parliament committees. It's almost certain that the current government will lose power and the opposition party says being gay is a "disease". Indian parliament is not in session right now and even if its in session noting works there because of idiot MP's stalling the proceedings. So making a new legislation is a no go right now. Another choice for the government is to bring in an ordnance, but it only has 6 months of validity. So if another government comes to power they would let it simply expire. So we are back to square one.

So I guess this review petition is our only sensible choice right now. I just pray and hope this time the supreme court will do the correct thing and support the 2009 verdict of Delhi high court and decriminalize this stupid colonial law.

I agree with the other poster that it's the parliament's job to protect us, but sadly for all the wrong reasons, nothing works there other than protests

Posted by: vivek | Dec 22, 2013 9:57:36 AM

One tidbit I discovered in reading about this case: apparently, if the information I had was correct, the decision was handed down by a two-judge panel; one of those justices has since stepped down. The request for review will go to a panel of ten justices, with quite possibly a more sensible outcome. This was, all things considered, a really stupid decision.

And the likelihood of getting anything through Parliament right now is exactly nil.